Chapter

The Canadian Charter of Rights and Freedoms: Is Sexual Orientation Discrimination Sex Discrimination?

Robert Wintemute

in Sexual Orientation and Human Rights

Published in print July 1993 | ISBN: 9780198264880
Published online March 2012 | e-ISBN: 9780191682841 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198264880.003.0008

Series: Sexual Orientation and Human Rights

The Canadian Charter of Rights and Freedoms: Is Sexual Orientation Discrimination Sex Discrimination?

More Like This

Show all results sharing this subject:

  • Human Rights and Immigration

GO

Show Summary Details

Preview

This chapter argues that sexual orientation is already implicitly included in an enumerated Section 15(1) ground of the Canadian Charter of Rights and Freedoms, that is, ‘sex’, because almost every case of sexual orientation discrimination can be analysed as one of sex discrimination. Could sexual orientation be included in any other grounds? Plaintiffs using human rights legislation to challenge sexual orientation discrimination (where sexual orientation was not a listed ground) have also invoked such grounds as ‘marital status’ or ‘family status’. Much discrimination against same-sex couples in Canada is arguably not based on the marital status of the couple because the benefit is provided to unmarried opposite-sex couples. It can certainly be argued that the concept of discrimination based on ‘family status’ can be applied to discrimination against same-sex couples. But the exclusion of same-sex couples from a definition of ‘family’ that includes unmarried opposite-sex couples without children can more easily be analysed as discrimination based on ‘sexual orientation’ or ‘sex’ than as discrimination based on the vague ground of ‘family status’.

Keywords: Canada; sexual orientation; sexual orientation discrimination; sex discrimination; same-sex couples; marital status; family status; sex

Chapter.  17891 words. 

Subjects: Human Rights and Immigration

Full text: subscription required

How to subscribe Recommend to my Librarian

Buy this work at Oxford University Press »

Users without a subscription are not able to see the full content. Please, subscribe or login to access all content.